Late Thursday Evening, June 5, 2008, the FDA posted a change on its web site:

ADVICE FOR RETAILERS, RESTAURATEURS AND FOOD SERVICE OPERATORS

FDA traceback review, in addition to production and distribution pattern information, has indicated that tomatoes from the following sources are not associated with the outbreak:

California

Georgia

North Carolina

South Carolina

Texas

Belgium

Canada

Dominican Republic

Guatemala

Israel

Netherlands

Puerto Rico

FDA recommends that New Mexico and Texas retailers, restaurateurs, and food service operators offer only fresh and fresh-cut red Roma, red plum, and round red tomatoes and food products made from these tomatoes for sale or service from the sources listed above.

Red Plum Tomato

Red Roma Tomato

Round Red Tomato

FDA further recommends that retailers, restaurateurs, and food service operators continue to offer cherry tomatoes, grape tomatoes, and tomatoes sold with the vine still attached, from any source.

FDA did NOT simultaneously change its warning to consumers telling them not to eat any raw red plum, red Roma or round red tomatoes but, presumably will get around to doing that soon.

We have to applaud the FDA for working to minimize the extent and impact of its restrictions. For all practical purposes, this really just leaves Mexico as the source of tainted tomatoes, since Florida production is finished.

One wonders if the original FDA warning to consumers in New Mexico and Texas not to eat raw red plum, red Roma or round red tomatoes wasn’t a violation of our WTO obligations. In fact even this revised list might be.

Certainly a country is permitted to safeguard its citizens, but there are plenty of places in the world that can produce these products that we know, for a fact, had no product in the United States since this outbreak began.

If we assume there were no New Zealand tomatoes in the US in the last month or none from Moroccan greenhouses, probably none from Italy and if we further speculate that these countries want to take advantage of a market opportunity to sell red plum, red Roma or round red tomatoes in Texas this week, on what basis does the US government advise consumers not to eat their product? In other words the idea of making a list of areas that are NOT associated with an outbreak is probably not WTO complaint. FDA needs an affirmative reason to believe a country is dangerous to exclude its product.

One day a government will bring a WTO complaint on such a trade restriction.

Still, one of the moral crimes of the spinach crisis was that farms in states never implicated in the problems, and producers of varieties never implicated in the problem, etc., all got crushed.

This move is a sign that FDA is anxious to avoid that kind of collateral damage in its future actions.

That is some very good news.

By the way, take a look at the gracious statement California Tomato Farmers issued after the FDA posted the change on its web site. You can find the statement here.